D and Others v Romania: Lack of access to an effective remedy in case concerning expulsion to Iraq

Tuesday, January 14, 2020

On 14 January 2020, the European Court of Human Rights (the Court) published its judgment in the case of D and Others v Romania (App no. 75953/16) concerning expulsion to Iraq following a conviction in Romania for the offence of migrant smuggling.

The first applicant, an Iraqi national, was granted refugee status in Germany and married to a Romanian citizen in 1997. The couple resided in Romania and had three children before divorcing in 2009. In 2006, the public prosecutor declared that the first applicant posed a threat to the national security of Romania and was deported to Syria. He returned in 2007 after obtaining false identity documents. Several criminal investigations were launched against him, including, inter alia, charges of facilitating the entry of Iraqi nationals who had allegedly supported or committed terrorist acts. He was sentenced in relation to these charges and was also given a five year ban on the right to remain in Romania. On appeal, the High Court rejected the applicant’s argument that he would be exposed to a risk of treatment contrary to Article 3 ECHR and would violate his right to family life guaranteed by Article 8 ECHR. In 2017, after the applicant’s release from prison, he was placed in administrative detention pending expulsion. In the meantime, his application for asylum was rejected. Administrative detention was ended in March 2019. The applicant complained, inter alia, that his return to Iraq would expose him to a risk of death or ill treatment contrary to Articles 2 and 3 ECHR respectively and that he did not have access to an effective remedy to challenge the findings of the national courts, contrary to Article 13 ECHR in conjunction with Articles 2 and 3.

The Court observed that evidence presented to show a risk of death or ill treatment was general and, as such, did not show evidence of a personal risk to the applicant. Moreover, it held that applicant had a normal relationship with Iraqi authorities: they had issued documentation certifying that he was neither sought for prosecution in Iraq nor linked to terrorist groups, as well as two laissez-passer documents. The Court therefore considered that he had failed to provide evidence of a real risk as a result of his personal circumstances. It concluded that there were no serious or substantiated grounds for believing that he would be subject to a real risk of death or ill treatment contrary to Articles 2 and 3 ECHR.

The Court noted that Article 13 ECHR requires the existence of domestic law or remedy capable of providing appropriate redress. This obligation must be such that the remedy available is effective. Indeed, the applicant’s complaint that his expulsion will have consequences contrary to Articles 2 and 3 must be made subject to careful scrutiny and access to an appeal with suspensive effect. It observed that while the applicant was able to challenge the enforcement of the sentence imposed and make an application for asylum, the available appeals did not have a suspensive effect. As such, the Court found a violation of Article 13 in conjunction with Article 2 and 3 ECHR.

Based on an unofficial translation by the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                                           


Effective remedy (right to)
Inhuman or degrading treatment or punishment